How To Navigate a Workplace Harassment Crisis

Thursday, February 8, 2018

In less than 24 hours in October 2017, one viral tweet calling on women to share their #MeToo experiences of sexual harassment created a new paradigm for employers across the United States and around the world. According to Twitter, 1.7 million tweets have featured the hashtag, with 85 countries having at least 1,000 #MeToo tweets. Similar stories were also shared on Facebook, with more than 12 million posts, comments, and reactions to the movement.

Now it’s hard to imagine people not talking about sexual harassment. And that includes employers that are aiming to both address specific incidents and prevent new ones.

As a go-to adviser for corporate America and the head of Morgan Lewis’s labor and employment practice, Grace Speights is at the forefront of helping clients navigate this shift proactively and effectively. She leads a multidisciplinary team of lawyers across the firm’s offices who are advising clients on everything from crisis management plans to independent investigations of allegations to workplace cultural assessments.

“Most companies want to get ahead of the curve,” Grace says. “New developments in this movement are both quick and powerful, so employers across the board—especially in industries where people predict more claims to surface (such as financial services, tech companies, universities and colleges, the judiciary, industrial settings, media, sports and entertainment, and non-profits)—are asking us how they should review their response plans and practices now.”

Grace recently discussed what kind of work clients are seeking related to the #MeToo movement and what she sees on the horizon.

What do you expect the next wave of this trend will be?

It’s clear that this movement has national support, and we expect to see similar allegations across more industries. We also could see more lawsuits filed (or threatened) not just from those alleging sexual harassment, but by those accused of sexual harassment, and perhaps even from shareholders demanding that their companies do more to respond to and prevent these types of claims. We may see more hiring of HR professionals, the formation of sexual allegation response committees within companies to provide an additional way for employees to complain about sexual harassment, and boards asking for external oversight. There is a lot for companies to consider.

You mention boards and shareholders; how do they fit into this movement?

Shareholders and board members hold an important role in this movement because they have the ability to be catalysts for change. We’re actively conducting independent investigations of allegations on behalf of special committees of boards of directors. We’re also counseling boards of directors and high-level executives on their responsibilities in connection with providing a sexual harassment–free workplace. But there also could be backlash from shareholders or board members in the form of litigation if companies are hit with allegations or lawsuits.

What kind of work are clients asking for now?

Employers are taking a more proactive approach. We’re advising on the preemptive creation of crisis management plans in coordination with communications experts before allegations are even made, and delivering enhanced and updated training on sexual harassment in the workplace. We also have seen increased interest in what we call “cultural assessments” or studies and in conducting investigations that are as transparent as possible, for the benefit of increasing trust among employees and assuring the public that companies take these issues seriously.

What is a cultural assessment?

“Cultural assessment” hasn’t entered the lexicon like “sexual harassment training,” but it should and it will. A cultural assessment is a comprehensive look at a company’s workplace culture. One area we often focus on in a workplace culture assessment is whether the employees know how to make a complaint about sexual harassment and whether they would feel comfortable in doing so. My team and I work with companies to build action plans based on their particular needs and goals, and go from there. There’s really no one-size-fits-all method—sometimes we have one-on-one interviews, focus groups, etc. There are any number of configurations.

This seems to fall a bit outside of normal lawyering, so how do you prepare to be a lawyer and a counselor?

It’s definitely a different approach. Normally when we conduct investigations, we know the specific accusations, who is being accused, and who is doing the accusing. But here, we don’t know what we are going to find. We tend to ask open-ended questions and do a lot of listening. It takes a lot of people-reading skills to do this work.

Also, even though our bench is deep and has experience across a variety of practices, when we do a cultural assessment for a company, the same core team members will be in the lead throughout the entire assessment or investigation. When the employees see the same people every day, that continuity helps build trust. It also ensures that each story is being heard through the same personal lens.

We talked about how quickly this movement spread via Twitter and Facebook. What is the impact of social media?

Social media certainly plays a role, most directly in how quickly information surfaces and circulates. A tweet can go viral in minutes—but companies can’t investigate complaints that quickly. It’s a good reminder for companies to think about and plan for the impact of social media, which in turn is another good reason to have a crisis plan in place.